54 Wis. 86 | Wis. | 1882
This is an action qui tarn to recover, penalties against the defendant, as1 chairman of the town board of supervisors, for neglecting to erect guide-boards at the intersection of certain main traveled and legally laid out roads, under section 1227, R. S. The plaintiff, on the trial, failed to prove that such roads had ever been laid out according to the provisions of the statute for laying out highways, but offered to prove that they had been used by the public as highways for over twenty years, which offer was refused, and a nonsuit was granted. The only question, therefore, is whether the language of the statute, “legally laid out roads,” means such roads only as have been laid out according to the statute providing for the laying out of highways, or may be construed to embrace highways which have become such by mere user or dedication. I have been particular in the use of words to clearly define the two different methods by which traveled roads become highways, because it is plausibly contended that the language, “ legally laid out roads,” includes such as are “legally ” laid out by user or dedication, as well as such as are legally laid out by the action of the town authorities according to the statute, and that both classes of highways are properly called “legally laid out.” No case was cited on the argument in which this precise language has received judicial interpretation, and therefore, aside from cases in which language somewhat similar has been construed, the ordinary rules of statutory interpretation must be resorted to.
Language nearest in terms and signification to that here used, and in a statute in the same sense quasi penal, is found in the statutes of this state and in some other states, in respect to encroachments upon a highway which “ shall have been laid out and opened,” and providing a forfeiture, against the person guilty of the encroachment, of fifty cents for every day of its continuance after the service upon him of an order for its removal. In Soule v. State, 19 Wis., 593, it was decided merely, in respect to this question, that in an action to recover
The language of this statute is much stronger as signifying action upon the part of the town authorities according to the
By the Oourt. — Th& judgment of the circuit courtis affirmed.